M/s. A.K. Plantation Pvt. Ltd., New Delhi V. ITO, New Delhi

ITA 494/DEL/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 7077 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-02-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 13-01-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 28-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K K JAISWAL
• Assessee Lawyers: PARAS DAWA R
• Section: 143(3)

Judgement Text

ITA NOS.493 & 494/DEL/2013 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI L.P. SAHU, ACCOUNTANT MEMBER I.T.A. NO S . 493 & 494 /DEL/20 1 3 A.Y : 2006 - 07 M/S A.K . PLANTATION PVT. LTD., B-1/H-3, MOHAN COOPERATIVE INDUSTRIAL ESTATE, MATHURA ROAD, NEW DELHI 44 (PAN: AAECA9322J) VS INCOME TAX OFFICER, WARD 1(1), NEW DELHI (APPELLANT) (APPELLANT) (APPELLANT) (APPELLANT) (RESPONDENT) (RESPONDENT) (RESPONDENT) (RESPONDENT) ASSESSEE BY : SH. PARAS DAWA R , CA DEPARTMENT BY : SH. K.K. JAISWAL, DR DATE OF HEARING: 13.01.2016 DATE OF ORDER : 03.02.2016 ORDER ORDER ORDER ORDER PER PER PER PER H.S. SIDHU : JM H.S. SIDHU : JM H.S. SIDHU : JM H.S. SIDHU : JM THE ASSESSEE HAS FILED THESE APPEALS AGAINST THE SE PARATE IMPUGNED ORDERS BOTH DATED 20/11/2012 PASSED BY THE LD. COM MISSIONER OF INCOME TAX (APPEALS)-IV, NEW DELHI FOR THE RELEVANT ASSESSMENT YEAR 2006-07. SINCE THE ISSUES INVOLVED IN THESE APPEALS ARE COMMON AND IDE NTICAL, HENCE, THESE APPEALS ARE BEING CONSOLIDATED AND DISPOSED OF BY T HIS COMMON ORDER FOR THE SAKE OF CONVENIENCE, BY DEALING WITH ITA NO. 493/DE L/2013. 2. THE GROUNDS RELATING TO PENALTY U/S. 271(1)(C) R AISED IN THE ASSESSEES APPEAL NO. 493/DEL/2012 READ AS UNDER:- ITA NOS.493 & 494/DEL/2013 2 THAT THE LD. CIT(A) HAS ERRED BOTH IN LAW AND FACT S OF THE CASE, IN CONFIRMING THE PENALTY WITHOUT APPRECIATING THE FAC TS AND CIRCUMSTANCES OF THE CASES AND IGNORING THE BASICS. IT IS, THEREFORE, PRAYED THAT THE APPEAL MAY KIN DLY BE ACCEPTED. 3. THE GROUNDS RELATING TO PENALTY U/S. 271(1)(B) R AISED IN THE ASSESSEES APPEAL NO. 494/DEL/2012 READ AS UNDER:- THAT THE LD. CIT(A) HAS ERRED BOTH IN LAW AND FACT S OF THE CASE, IN CONFIRMING THE PENALTY WITHOUT APPRECIATING THE FAC TS AND CIRCUMSTANCES OF THE CASES AND IGNORING THE BASICS. IT IS, THEREFORE, PRAYED THAT THE APPEAL MAY KIN DLY BE ACCEPTED. 4. THE FACTS NARRATED BY THE REVENUE AUTHORITIES AR E NOT DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE NOT REPEATED HERE FOR THE SAKE OF CONVENIENCE. 5. AT THE TIME OF HEARING, LD. COUNSEL OF THE ASSES SEE STATED THAT ITAT VIDE ORDER DATED 08.08.2014 PASSED IN ITA NO. 3883/DEL/2 011 (AY 2006-07) IN ASSESSEES OWN CASE SET ASIDE THE ASSESSMENT ORDER DATED 25.11.2008 AND RESTORED THE MATTER TO THE FILE OF THE AO TO DO THE NEEDFUL IN ACCORDANCE WITH LAW HAVING BROUGHT THE CORRECT JURISDICTION OF THE ASSE SSEE. THE FACTS AND FINDINGS NARRATED BY THE ITAT A BENCH, NEW DELHI IN ITS OR DER DATED 8.8.2014 PASSED IN ITA NO. 3883/DEL/2011 (AY 2006-07) IN THE ASSESS EES CASE ARE GIVEN IN PARA 3 TO 5. FOR THE SAKE OF CONVENIENCE, THE RELEV ANT PARAS ARE REPRODUCED HEREUNDER:- 3. AT THE TIME OF HEARING BEFORE US, IT IS SUBMITT ED BY THE LEARNED COUNSEL THAT THE ASSESSEE HAD FILED THE RETURN DECL ARING TOTAL INCOME OF RS. 3,22,414/- ON 21.03.2007. NOTICE UNDER SECT ION 143(2) ITA NOS.493 & 494/DEL/2013 3 WAS ISSUED BY THE ITO, WARD 1(3) AND THE SAME WAS S ERVED UPON THE ASSESSEE. IN RESPONSE TO THE NOTICE, THE ASSESS EES AUTHORIZED REPRESENTATIVE SHRI P.K. AGRAWAL, CHARTERED ACCOUNT ANT ATTENDED FROM TIME TO TIME AND FILED THE DETAILS AS ASKED FO R BY THE ASSESSING OFFICER. THE ASSESSING OFFICER, SATISFIED WITH THE EXPLANATION FURNISHED BY THE ASSESSEE, ACCEPTED THE RETURNED IN COME VIDE ORDER UNDER SECTION 143(3) DATED 28.11.2008. COPY OF THE ASSESSMENT ORDER IS PLACED AT PAGE 1 OF THE ASSESSEES PAPER B OOK. THAT THE ASSESSEE WAS SURPRISED TO RECEIVE ANOTHER ASSESSMEN T ORDER DATED 25.11.2008 PASSED UNDER SECTION 143(3)/144 DETERMIN ING THE TOTAL INCOME AT RS. 33,69,514/-. THIS ORDER IS PASSED BY ITO, WARD 1(1), NEW DELHI. HE SUBMITTED THAT HOW THERE CAN BE TWO A SSESSMENT ORDERS FOR THE SAME ASSESSEE AND FOR SAME ASSESSMEN T YEAR. HE ALSO SUBMITTED THAT THE NOTICE CLAIMED TO HAVE BEEN ISSUED UNDER SECTION 143(2) BY THE ITO, WARD 1(1), WAS NEVER SER VED UPON THE ASSESSEE. HE, THEREFORE, SUBMITTED THAT THE ASSESSM ENT ORDER DATED 25.11.2008 PASSED BY THE ASSESSING OFFICER OF WARD 1(1) MAY BE QUASHED AND ASSESSMENT ORDER DATED 28.11.2008 PASSE D BY ITO, WARD 1(3) SHOULD BE SUSTAINED. 4. LEARNED DR, ON THE OTHER HAND, RELIED UPON THE A SSESSMENT ORDER DATED 25.11.2008 AND STATED THAT THIS ORDER IS EARL IER AND IF AT ALL ONE ORDER IS TO BE QUASHED, THEN THE ASSESSMENT ORD ER DATED 28.11.2008 SHOULD BE QUASHED. HOWEVER, SHE WAS UNAB LE TO EXPLAIN HOW THERE CAN BE TWO ASSESSMENT ORDERS FOR THE SAME ASSESSEE FOR THE SAME ASSESSMENT YEAR. 5. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF BOTH THE SIDES AND PERUSED RELEVANT MATERIAL PLACED BEFORE US. WE FIND THAT THERE ITA NOS.493 & 494/DEL/2013 4 ARE TWO ASSESSMENT ORDERS ON RECORD IN THE CASE OF THE ASSESSEE FOR SAME ASSESSMENT YEAR. IN BOTH THE ASSESSMENT ORDERS , THE NAME, ADDRESS AND PERMANENT ACCOUNT NUMBER ARE THE SAME. BOTH THE ASSESSMENT ORDERS MENTIONED THAT THE ASSESSEE FILED THE RETURN DECLARING AN INCOME OF RS. 3,22,414/- ON 21.3.2007. THUS, BOTH THE ASSESSING OFFICERS PROCEEDED ON THE BASIS OF SA ME RETURN OF INCOME. ADMITTEDLY, THE TWO ASSESSING OFFICERS CANN OT HAVE JURISDICTION UPON ONE ASSESSEE. THEN, HOW AND WHY T WO SEPARATE ASSESSING OFFICERS PROCEEDED TO ASSESS THE SAME ASS ESSEE FOR SAME ASSESSMENT YEAR IS THE QUESTION WHICH NEEDS TO BE E NQUIRED INTO BY THE CONCERNED COMMISSIONER OF INCOME TAX. WE, THERE FORE, SET ASIDE THE ASSESSMENT ORDER DATED 25.11.2008 WHICH I S IN APPEAL BEFORE US AND RESTORE THE MATTER TO THE FILE OF THE ASSESSING OFFICER. WE ALSO DIRECT THAT A COPY OF THIS ORDER MAY BE SEN T TO THE CONCERNED COMMISSIONER OF INCOME TAX WHO MAY EXAMIN E WHICH ASSESSING OFFICER HAS THE CORRECT JURISDICTION OF T HE ASSESSEE AND THEN DO THE NEEDFUL IN ACCORDANCE WITH LAW. 6. AFTER GOING THROUGH THE AFORESAID FINDING OF THE TRIBUNAL, WE ARE OF THE VIEW THAT IN THE QUANTUM PROCEEDINGS THE ASSESSMENT ORDER DATED 25.11.2008 HAS BEEN SET ASIDE BY THIS BENCH VIDE ORDER DATED 0 8.08.2014 FOR WANT OF CORRECT JURISDICTION, THEREFORE, THE PENALTY IN QU ESTION CANNOT STAND IN THE EYES OF LAW. HENCE, THE PENALTY IN DISPUTE STANDS DELET ED. HOWEVER, THE AO IS AT LIBERTY TO INITIATE THE FRESH PENALTY PROCEEDINGS, AFTER THE COMPLETION OF THE ASSESSMENT. ITA NOS.493 & 494/DEL/2013 5 7. AS REGARDS ITA NO. 494/DEL/2013 IS CONCERNED, FO LLOWING THE CONSISTENT VIEW TAKEN IN ITA NO. 493/DEL/2013 AS AFORESAID, T HE PENALTY IN DISPUTE IN ITA NO. 494/DEL/2013 ALSO STANDS DELETED. 8. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 03/02/2016. S SS SD DD D/ // /- -- - S SS SD DD D/ // /- -- - [ [[ [L.P. SAHU L.P. SAHU L.P. SAHU L.P. SAHU] ] ] ] [ [[ [H.S. SIDHU H.S. SIDHU H.S. SIDHU H.S. SIDHU] ]] ] ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER JUDICIAL JUDICIAL JUDICIAL JUDICIAL MEMBER MEMBER MEMBER MEMBER SRBHATNAGAR SRBHATNAGAR SRBHATNAGAR SRBHATNAGAR DATE: 03.02.2016 COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: - -- - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES